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California rulings on gay-conversion ban fall on competing sides

By Lisa LeffThe Associated Press

Posted:
12/05/2012 12:01:00 AM MST

Updated:
12/05/2012 06:18:18 AM MST

SAN FRANCISCO — Two federal judges in California have arrived at opposite conclusions on whether the state's first-of-its-kind law prohibiting licensed psychotherapists from trying to change the sexual orientations of gay minors violates the Constitution. The measure remains clear to take effect on Jan.1.

U.S. District Judge Kimberly Mueller on Tuesday refused to block the law after concluding that opponents who have sued in her Sacramento court to overturn it were unlikely to prove the ban on "conversion" therapy violates their civil rights.

The opponents argued the law would make them liable for discipline if they merely recommended the therapy to patients or discuss it with them. Mueller said they didn't demonstrate that they were likely to win, so she wouldn't block the law.

Mueller issued her decision in a lawsuit filed by four counselors, two families, a professional organization for practitioners and a Christian therapists group.

It came half a day after her colleague, U.S. District Judge William Shubb, handed down a somewhat competing ruling in a similar but separate lawsuit. Saying he found the First Amendment issues presented by the ban to be compelling, he ordered the state to temporarily exempt three people named in the case before him — two mental health providers and a former patient who is studying to practice sexual orientation change therapy.

Sen. Ted Lieu, who sponsored the law, said Tuesday that because Shubb limited the scope of his decision, Mueller's ruling means the law may be applied statewide at the beginning of the new year — except for the three individuals mentioned.

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Murky future for law

The future of the statute remains unclear, however. Mathew Staver, chairman of the Christian legal group Liberty Counsel, said Tuesday he planned to appeal Mueller's decision and seek an emergency injunction to keep the law on hold until its constitutionality is determined.

Shubb said his decision applies only to the three plaintiffs who had challenged the ban — two practicing therapists and an aspiring one — and until he can hold a full hearing. But his written ruling left little doubt that in his court, as he put it, "the plaintiffs are likely to succeed" and that, if his interpretation of the law prevailed in future appeals, the ban effectively would be overturned.

When he signed the bill this fall, Gov. Jerry Brown, repeating the judgment of the legislature, said conversion therapies "have no basis in science or medicine, and they will now be relegated to the dustbin of quackery" and that they "have driven young people to depression and suicide."

Major mental health associations in the state supported the ban on efforts to alter the sexual orientation of youths, while the American Psychological Association and other leading professional societies say these efforts, also known as reparative therapy, have never been shown to work.

The law states that therapists and counselors who use "sexual orientation change efforts" on clients under 18 would be engaging in unprofessional conduct and subject to discipline by state licensing boards.

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